Privacy, Data Security, and eDiscovery Issues Are Spreading to Other Areas of Law

As Chair of the American Bar Association Section of Science & Technology Law, I write a column every quarter for the Section’s glossy magazine, The SciTech Lawyer. In the upcoming issue of the magazine, I will be writing about changes I perceive in the practice of law. In particular, my message to the Section’s membership is that rapid advances in science and technology are changing the way lawyers practice law and are changing law itself. Areas of law that were once perceived as “low tech” are now seeing the influx of “high tech” legal issues. Among these high tech issues are privacy, data security, and eDiscovery issues.

I offer one example to make the point from the field of real estate law. At first blush, real estate law seems like the prime example of being “low tech.” Real estate law reaches back to medieval times, where concepts such as "fee simple" ownership, "life estates," and landlord-tenant law developed out of the feudal system. (Even the jargon sounds medieval.) Nothing could be further from the high-tech worlds of computers and the Internet, or so it seemed.

Imagine my surprise recently when I had to look into the question of what commercial real estate owners are doing about retention policies, litigation hold policies, and privacy policies relating to video collected by video cameras on their properties. Cameras provide assurances of security and may provide evidence in case of criminal conduct on the property. Despite their increasing use, there really isn’t any standard form set of policies that lawyers can pull off the shelf to help their clients address the high tech issues that arise from the use of video cameras. And yet consider some of the issues involved--

Retention policy: property owners don’t want to spend their time and money responding to subpoenas requiring a search for video of some car accident that occurred in the parking lot two years ago. On the other hand, the rules of eDiscovery require owners to disclose information in their possession, custody, or control that is reasonably accessible and not unduly burdensome to produce.

Litigation hold: property owners will likely need to implement a litigation hold when they receive a preservation notice for relevant video.

Privacy policy: property owners are collecting video that shows people who are going about their business on the property. Without proper notice, they may be unaware of the filming and object to the filming as an invasion of privacy. In addition, there have been some cases of security personnel misappropriating surveillance images and committing abuse with the images. Also, what happens if celebrities are coming onto the property? Security personnel may be tempted to sell video depicting these celebrities. Privacy controls, including personnel controls, need to be put into place to prevent this kind of abuse.

Policy regarding service providers: property owners may be receiving video technology from service providers, and may be storing the video in the cloud. Accordingly, there may be a cloud storage provider in possession of the video as it is collected. Service providers may have access to video as part of the installation, testing, maintenance, operation, repairs, and retirement of equipment. Policies must implement controls to ensure that service providers are maintaining the privacy and security of video to which they have access.

My point here is that lawyers in practice areas that might in theory be considered fairly “low tech” have now started to engage in high tech law to handle their cases day to day. This process will accelerate over time. As lawyers, eDiscovery professionals, and information security professionals, we will need to be prepared to help out our “low tech” colleagues when they ask for help as “high tech” issues arise in their work.

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